As everyone knows, or should know, in June, the U.S. Supreme Court ruled that the Federal Defense of Marriage Act (DOMA) is unconstitutional. Essentially, the case leaves the question of marital status up to the States. The decision has the effect of applying Federal laws that relate to marriage so that they apply equally to same-sex couples who are lawfully married in states and jurisdictions that recognize same-sex marriage.

Because DOMA affected virtually every Federal statute that categorized someone as a spouse or categorized a couple as married, this brief article will not attempt to be comprehensive. Recall that prior to the decision of the U.S. Supreme Court in United States v Windsor, decided June 26, 2013, section 3 of DOMA prohibited the Federal government from recognizing same-sex marriages. Therefore, by way of offering a few brief examples, a same-sex couple who married in a jurisdiction where the same-sex marriage was permitted, could not file a joint federal tax return; they could not take advantage of the marital deduction on an estate tax return; the Social Security system could not consider the surviving spouse as a surviving spouse under their statutes and rules; and a same-sex married couple, could not be treated as married under the immigration laws. I would like to discuss a few of these issues.

​My thinking is that people who want to get married should do so, and not base their decision upon peripheral issues, such as tax treatment; but they should nevertheless understand what awaits them if they do so.

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INCOME TAX. After Windsor, it appears that the two choices available to a same-sex married couple from the point of view of income-tax status are: married filing jointly and married filing separately. They no longer can file as single people. This might not always be economically advantageous to the couple, but along with the rights of married couples under federal law, come the responsibilities of married persons as well. Until Windsor, married couples marrying and residing in states that recognize same-sex marriage would have had the opportunity to file jointly on the state level and file as “single” filing separately on the Federal level. Recall that Windsor does not require any state to recognize same-sex marriage, so that if a couple is married in a state that recognizes same-sex marriage, but resides in a state that does not, the reverse may now be true – they may file jointly as married spouses on the Federal level, but have to file in single status in that state.
​It is noteworthy that in Maine, the first same-sex marriages were solemnized on December 29, 2012, on the day the new law took effect. For married couples who married before the end of 2012, they may wish to go back and file an amended tax return for 2012, if doing so would have reduced their tax liability.
A couple who married in a state that has a longer history of authorizing and recognizing same-sex marriage (such as Massachusetts) might be able to go back further with respect to amending their prior years’ Federal tax returns. However, although Maine did not recognize same-sex marriages (for tax purposes and other purposes) prior to this past December 29th , and it would thus appear logical that amending prior years’ tax returns, in light of Windsor, should not affect the Maine income tax returns prior to 2012, the Maine Income Tax is based upon Federal adjusted gross income. For this reason, if a couple, was lawfully married in Massachusetts five years ago, and now files amended Federal tax returns for the past three (3) years, thereby changing their Federal adjusted gross income for those years, it is at least theoretically possible that the Maine returns for those years might need to be amended as well.

ESTATE TAX. With respect to the estate tax marital deduction, it should now be available to a same-sex married couple who married in a state that recognizes same-sex marriage, regardless of where they reside when one of them dies, but depending upon the state’s estate-tax laws, the deduction may or may not be available to the surviving spouse in that state with respect to state inheritance or estate tax. Some states’ estate tax laws base the state-level estate tax upon a line in the Federal form 706. Depending upon how the state law is worded, the availability of the Federal marital deduction may or may not be available on the state level. Our Maine statutes make reference to the Federal Taxable Estate, and this is determined in part by reference to the marital deduction based upon Schedule M of the Form 706, so the statute in Maine incorporates the federal marital deduction. Of course, Maine also recognizes same-sex marriages, so the issue should have become largely irrelevant here in Maine; but if a decedent, lawfully married to a same-sex spouse in another state, died in 2012 prior to December 29th , and the amounts on the Federal form 706 have not yet been determined, and Windsor now compels the IRS to recognize the marriage, the effect of the available marital deduction on the Federal taxable estate could in fact reduce, or do away with liability for Maine estate tax. There are likely to be some other states that do not recognize same-sex marriage, but nevertheless base the assessment of the state estate or inheritance taxes upon the Federal Form 706, and therefore, whether or not intentionally, may, by default, afford same-sex married couples a marital deduction.

FEDERAL BENEFITS. With respect to Social Security and other Federal benefits, including spousal benefits of a Federal employee or a service member, the rights under Federal law to the spousal benefits should now be equivalent, as long as the marriage was solemnized where it is valid under applicable state law. Although most of the focus has been upon governmental benefits, very recently, a Federal judge in Pennsylvania interpreted ERISA, the Employee Retirement Income Security Act, in light of Windsor, to require that a private company’s retirement plan be construed to include coverage for the same-sex wife of a woman who had worked for the company as the “surviving spouse” under the plan. This suggests that employee benefit plans that are regulated by Federal laws may be affected by the decision.
IMMIGRATION. With respect to international same-sex couples seeking to have the non-resident alien spouse immigrate to the U.S., the first advice I would offer is to consult an immigration attorney before planning the wedding, and I would offer this same advice to both same-sex and opposite sex couples. There are a number of ways to proceed; one being to obtain a fiancé visa for the alien fiancé, in which case the marriage needs to be solemnized within 90 days; another alternative is to solemnize the marriage and then apply for a visa. An immigration lawyer can provide advice as to which alternative is the best for the particular couple. Among the considerations may be whether the couple is going to reside abroad as a married couple or whether they intend to have the alien enter the United States immediately so that the couple can reside here. It may also be that once a visa (other than a tourist visa) has been applied for, the alien partner will not be able to re-enter the U.S. on a tourist visa, until the pending visa application has been processed. Notwithstanding the reality that many international couples who have been unable to be treated as married under our immigration laws have been waiting a long time to be together as a resident couple, it is essential to obtain sound advice in order to make the process operate smoothly.

OTHER RAMIFICATIONS. One other aspect of this decision that has not yet been the subject of a great deal of discussion is the effect of all of this on the availability of benefits for same-sex couples who can legally be married but who decide not to do so. By way of example, if an employer in Maine has historically provided domestic partner benefits for its employees, such as health insurance (putting aside, for the moment, the tax treatment of this benefit), but now all employees – same sex and opposite sex – have the right to be married under Maine law to have their marital status recognized by the Federal government, there exists the possibility that the employer may make a decision to offer health insurance only for spouses of married employees, rather than for domestic partners of employees. To be sure, a multi-state employer who employs people in states that do not recognize same-sex marriage may not feel comfortable changing such a policy, but this may become an important issue – not merely because of the demise of DOMA, but also because of the proliferation of jurisdictions that choose to permit and recognize same-sex marriage. In this respect, the incremental but steady progress toward marriage equality could in theory generate a loss of benefits for unmarried domestic partners. We need to remember that marriage equality is about equality of opportunity, and as such, it may, in the long-term, change aspects of life for those couples who – having the freedom to choose – exercise their right not to get married.

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The Law Court in a recent case, has essentially ruled that in a dispute between an attaching creditor and a party holding a security interest in a deposit account as collateral, if the secured party failed to obtain “control” of the deposit account in one of the ways set forth in the Uniform Commercial Code, the attaching Creditor has priority over the secured party. Davis Forestry Products, Inc. v. Downeast Power Company LLC 2011ME 10.

This is a pretty important case in the context of commercial lending and commercial transactions.


In a December decision, the Law Court ruled that the usual burden of proof with respect to a person claiming an easement by prescription (i.e., an easement arising out the long-term use of a road or path by the claimant) is different where the adverse parties are family members. There are three elements of proving an easement by prescription: (a) 20 years use of the way (b) under a claim of right adverse to the owner (c) with the owner’s knowledge or acquiescence, or by a use so open and notorious that knowledge or acquiescence will be presumed. Under established Maine law, if you prove (a) and (c), there is a presumption that (b) existed, and the defendant needs to prove, for instance, that the use was permissive, in an effort to thwart the claimant from proving it was under a claim of right adverse to the owner. Now, however, the Law Court has said that where the adverse use is among family members, the presumption as to adversity does not apply. Androkites v White, 2010 ME 133

Although it sounds technical, because the facts of these cases always go back at least 20 years, and often much more than that, and witnesses may not be available, the question of who loses their case by reason of not being able to produce a witness can be pivotal !


They say that no one is safe while the Legislature is in session, so it is useful to get a look at bills that are being proposed. Early in the session, some of the bills may not have been printed, but some will have been.

If you want copies of legislative bills, you can go to

1 Farrell v City of Auburn, 2010 ME 88, Eliott Shores, LLC v Town of Eliot, 2010 ME 129